Opposition Brief — Lee's Summit Reorganized School District v. Naylor

No. 90-391

In The

Supreme Court of the United States

October Term, 1990

+

LEE’S SUMMIT REORGANIZED SCHOOL DISTRICT

R-7, SCHOOL DISTRICT OF THE CITY OF INDEPEN-

DENCE, NORTH KANSAS CITY SCHOOL DISTRICT,

MEMBERS OF THEIR RESPECTIVE BOARDS OF EDU-

CATION AND SUPERINTENDENTS, et al.,

Petitioners,

JENNIFER T. NAYLOR, et al.,

Respondents.

,%

vw

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

+

BRIEF OF RESPONDENTS NAYLOR, et al.,

IN OPPOSITION TO CERTIORARI

=—a®

Artuur A. Benson II

1000 Walnut Street

Suite 1125

Kansas City, Missouri 64106

(816) 842-7603

Attorney for Respondents,

Naylor, et al.

RMN GR CALL COURT it) 902881

BEST AVAILABLE COPY *

Z{

COUNTER-STATEMENT OF QUESTION PRESENTED

Whether the Court of Appeals’ reversal and remand

for trial of the district court’s grant of summary judgment

warrants review by this Court.

ii

TABLE OF CONTENTS

Page

Counter-Statement of Question Presented .......... i

Tee GE RI ik. 5 8 iS 066 hen Sa cecan bcdsenwias iii

Counter-Statement of the Case.................545- 1

Reasons For Denying The Writ .................... 3

Summary GF ARON qo. ois ccccnndsccdtttncss cass 3

I. There is nothing in the facts and circumstances of

the case that gives rise to questions presented in

Ce POPNIOM. 2.0 ccc cccccacnccesecenestsecesocess 4

A. Petitioners have not been found to have vio-

lated the the Fourteenth Amendment. ..... 5

B. The Eighth Circuit’s opinion below does not

authorize any court to coerce SSD coopera-

thom im a VET peGpaeel. 2... cscs ccccccccccee 7

II. The Eighth Circuit correctly remanded the Naylor

litigation to the district court for a trial on the

GRGTIAB. oo ccc uwecnccccicncccnecscccecccccucesse 9

A. Unlike the district court, the Eighth Circuit

correctly followed this Court’s summary

PaGaURGR GRORIEEE. 2 roc cc cccccccccccnceeses 10

B. The Naylor class presented genuine issues of

material fact that precluded summary judg-

MPVTTTT IT Te eerie 12

C. Neither Wygant nor Goldsboro are in conflict

with the Judgment of the Eighth Circuit... 15

., MPUTTTSTT TTT eT ey eee 16

ili

TABLE OF AUTHORITIES

Page

Anderson v. Liberty Lobby, 477 U.S. 242 (1986)..4, 10, 11

Goldsboro City Bd. of Educ. v. Wayne County Bd. of

Educ., 745 F.2d (4th Cir. 1984)

Griffin v. County School Bd., 377 U.S. 218 (1969). ...6, 13

Jenkins v. Missouri, 904 F.2d 415 (8th Cir. 1990).. passim

Jenkins v. Missouri, 639 F. Supp. 19 (W.D. Mo. 1985) ..... 2

Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986)....... 2

Naylor v. Lee's Summit Reorganized School Dist. R-7,

703 F. Supp. 803 (W.D. Mo. 1989)............. passim

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977) ...4, 6, 11, 13, 15

Washington v. Davis, 426 U.S. 229 (1976)............. 11

Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) ..15, 16

No. 90-391

a

bd

In The

Supreme Court of the United States

October Term, 1990

y%

4

LEE’S SUMMIT REORGANIZED SCHOOL DISTRICT

R-7, SCHOOL DISTRICT OF THE CITY OF INDEPEN-

DENCE, NORTH KANSAS CITY SCHOOL DISTRICT,

MEMBERS OF THEIR RESPECTIVE BOARDS OF EDU-

CATION AND SUPERINTENDENTS, et al.,

Petitioners,

JENNIFER T. NAYLOR, et al.,

Respondents.

sa

4

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

a

_—

BRIEF OF RESPONDENTS NAYLOR, et al.,

IN OPPOSITION TO CERTIORARI

7X

-

COUNTER-STATEMENT OF THE CASE

The single count complaint in this case was filed on

August 9, 1988 by a class of 134 black public school

students against three school districts, the petitioners,

alleging that in 1988 those districts violated the Four-

teenth Amendment by refusing them admittance because

of their race. Joint Appendix at 93. The students had

earlier sought, and been denied, admission as tuition-

paid, nonresident students. The students also sought, in

this compiaint and in a parallel motion in Jenkins, declara-

tory and injunctive relief against the State of Missouri

defendants for their refusal to fund the students’ trans-

fers.2

The district court granted motions for summary judg-

ment dismissing the complaint? and the students

appealed. The court of appeals reversed “because a mate-

rial factual dispute remains respecting the suburban

school districts’ racial motivation in refusing to accept

black transfer students from the KCMSD.” Jenkins v. Mis-

souri, 904 F.2d 415, 419 (8th Cir. 1990).4 The case was

remanded for further proceedings. Jd. at 420.

a.

vy

1 As black residents of the School District of Kansas City,

Missouri these students were the intended beneficiaries of a

voluntary interdistrict transfer proposal that had been ordered

in Jenkins v. Missouri, 639 F. Supp. 19, 39 (W.D. Mo. 1985), aff'd,

Jenkins v. Missouri, 807 F.2d 657, 684 (8th Cir. 1986), cert. denied

484 U.S. 816 (1987), and by which the State of Missouri defen-

dants were to provide transportation and pay the tuition to

surrounding school districts for black students from Kansas

City.

2 The State defendants did not seek certiorari from the

judgment of the court of appeals and are not now before this

Court.

3 Naylor v. Lee’s Summit Reorg. Sch. Dist. R-7, 703 F. Supp.

803 (W.D. Mo. 1989).

* This case is reported under the Jenkins caption because

the court of appeals decided parallel issues in Jenkins and

(Continued on following page)

3

REASONS FOR DENYING THE WRIT

Summary of Argument

This Court should deny the petition in this case for

two reasons. First, there is nothing in the facts of the case

or the proceedings below that remotely gives rise to the

issues in the petitioners’ questions presented. The peti-

tion presents questions that the facts and circumstances

of the case simply do not present. The only action the

court of appeals took with respect to the petitioners in

Naylor was to reverse the grant of summary judgment in

their favor, as required by some factual errors committed

by the district court,5 and to remand the case to that court

to determine whether or not the evidence supports

respondents’ claims of intentional discrimination. No fac-

tual issues were resolved against petitioners. Nor were

any legal issues resolved against the petitioners except to

say that the evidence proffered by respondents, if proven,

might establish intentional racial discrimination. Conse-

quently, no court has held that any of the petitioners has

violated the Fourteenth Amendment, and no court has

coerced any school district to participate in any voluntary

(Continued from previous page)

Naylor in a single opinion. Petitioners are parties only to the

Naylor case. No aspect of the Jenkins case is now before this

Court.

5 The court of appeals found a “genuine issue of material

fact.” Jenkins v. Missouri, at 420. The basis for this finding is

explained in the concurrence at 422-424. See, e.g. Jenkins at 423

(Gibson, J., concurring) (“ . . . the district court erred in

viewing the actions of the suburban school districts as merely

preliminary proposals which could not serve as the basis for a

finding of invidious discrimination.”).

interdistrict transfer plan. Instead, the district court in

Naylor has been instructed to try the case and has been

instructed in Jenkins, which is not before this Court, to

promulgate and implement a voluntary interdistrict

transfer proposal for those school districts, and only

those districts, that choose to participate.®

Second, the Eighth Circuit correctly applied the law

in reversing the district court’s grant of summary judg-

ment. Explicitly relying upon and routinely applying the

summary judgment standards enunciated by this Court in

Anderson v. Liberty Lobby, 477 U.S. 242 (1986) and the

intentional discrimination standards enunciated by this

Court in Village of Arlington Heights v. Metropolitan Hous-

ing Development Corp., 42 U.S. 252 (1977), the court of

appeals properly concluded that the Naylor class has pre-

sented genuine issues of material fact. Because the dis-

trict court failed to apply, or incorrectly applied,

summary judgment standards, reversal was proper. No

other issue was decided against petitioners; therefore, the

writ should be denied.

I. There is nothing in the facts and circumstances of

the case that gives rise to questions presented in the

petition.

Petitioners have raised two questions before this

Court. Because there is nothing in the facts and

¢ Because this order was part of the Jenkins litigation, to

which petitioners were not parties, it is not properly before this

Court. Petitioners’ reliance on the Jenkins order is therefore not

only incorrect, but also misplaced. Indeed, pursuant to the

judgment in Jenkins the district court on May 14, 1990 promul-

gated its proposal, the State solicited participation by school

districts, and one — Misscuri City - agreed. Minority students

from KCMSD are now attending school in Missouri City.

circumstances of the case that gives rise to either ques-

tion, the writ should be denied.

A. Petitioners have not been found to have vio-

lated the Fourteenth Amendment.

Petitioners’ first question presented raises the hypo-

thetical question whether a suburban school district

(“SSD”) that chooses not to participate in a voluntary

interdistrict transfer proposal, by that fact alone, violates

the Fourteenth Amendment. Thus stated, the question

overstates the decision below. No court has found that

the petitioners violated the Fourteenth Amendment.

Nothing in the decision below even suggests that peti-

tioners have or have not violated respondents’ constitu-

tional rights. Rather, the Eighth Circuit remanded the

case to the district court for a factual determination of the

very question that the petitioners claim has been resolved

against them below and now seek to present for review to

this Court.

Neither the respondents nor the court below has ever

suggested that any refusal to participate in a voluntary

interdistrict transfer proposal, without more, would be

unconstitutional. Even the district court, in granting sum-

mary judgment in favor of petitioners, noted the narrow-

ness of the issue raised.

Thus, agp argue that defendants’

post-Jenkins refusal to admit plaintiffs as non-

resident students evidences an entirely new con-

stitutional violation, one that was not litigated

in Jenkins. As a result, the question before this

court is a narrow one: whether the SSDs refused

to admit plaintiffs as nonresident students

6

because of their race, in violation of the four-

teenth amendment to the United States Consti-

tution or whether the students were refused

admission for legitimate, nondiscriminatory rea-

sons.

Naylor, 703 F. Supp. at 812. No court has even considered

the issue that petitioners now claim was resolved against

them.

This Court’s previous opinions make clear, however,

that a racially based decision not to allow interdistrict

transfers from the KCMSD offends the Fourteenth

Amendment. See Arlington Heights, 429 U.S. at 267 & n.17

(departure from usual procedures or failure to consider

usual factors may be evidence of racial animus that vio-

lates the Fourteenth Amendment); Griffin v. County School

Bd., 377 U.S. 218, 230-32 (1969) (State can close —

but not for racially based reasons).

Even the barest examination of the Eighth Circuit's

opinion reveals that court’s acute awareness that a find-

ing of intent is a prerequisite to Fourteenth Amendment

liability. While the Naylor class had been denied admis-

sion by the SSDs, the court of appeals did not find that

this refusal violated the Fourteenth Amendment. Instead,

the Court “reverse[d] because a material factual dispute

remains respecting the suburban school districts’ racial

motivation in refusing to accept black transfer students

from the KCMSD.” Id. at 420. (emphasis added).

If — as petitioners necessarily contend as a premise

for seeking this Court’s review — the Eighth Circuit had

held that intent is not a requisite to liability for refusing

to participate in a voluntary interdistrict transfer plan,

the appeals court would have been required to grant

summary judgment to respondents. The Eighth Circuit

did not do that. Rather, it correctly remanded to the

district court for a trial on the merits of the intent ques-

tion. Because no court has found that the SSDs’ refusal to

participate in a voluntary interdistrict transfer proposal

offends the Constitution, this case does not in fact present

the first question that the petitioners hypothetically pre-

sent to the Court in their petition.

B. The Eighth Circuit's opinion below does not

authorize any court to coerce SSD cooperation

in a VIT proposal.

The petition similarly mischaracterizes the decision

below in its second question presented. The question

posed, “whether a federal court may coerce a local gov-

ernment with no history of racial discrimination to partic-

ipate” in a voluntary interdistrict transfer program

promulgated by a federal court, was neither presented

nor addressed in the court below. Rather, the entire focus

in the Naylor decision below was on identifying the

proper procedure for determining whether the petitioner

local governments do have a history of racial discrimina-

tion in regard to their decision to refuse admission to the

respondent black applicants.

Further, the Eighth Circuit’s entire discussion of the

district court’s responsibilities in regard to promulgating

a voluntary interdistrict transfer proposal occurred in its

discussion of the Jenkins litigation (which is not before

this Court), and imposed obligations exclusively on the

State of Missouri (which is not a party to this petition)

and not on the SSDs (which are not parties to the Jenkins

litigation). Again, the opinion is instructive. After dis-

cussing the Naylor claims, the Eighth Circuit turned to the

separate but parallel Jenkins litigation. The court first

considered and rejected the district court’s opinion that

the question of Sfate funding for a voluntary interdistrict

transfer proposal was not ripe. Jenkins, 904 F.2d at 419.

The Court then continued: “Resolution of the issues pre-

sented in Jenkins v. Missouri requires that the district court,

after giving the parties an opportunity to suggest pro-

posals, promptly develop a voluntary interdistrict trans-

fer program to implement the remedy called for in its

opinion of July 14, 1985, which we affirmed.” Jenkins, 904

F.2d at 419 (citation omitted) (emphasis added). The

Eighth Circuit could not have been more explicit that the

voluntary interdistrict transfer order was part of its opin-

ion in the Jenkins litigation. Because the SSDs are not

parties to the Jenkins litigation, they are not in any way

bound by the Jenkins order and have no standing or cause

to raise the Jenkins issues before this Court. ~

In any event, even were the Jenkins litigation some-

how before this Court, petitioners’ second question pre-

sented inaccurately portrays the Eighth Circuit's order in

that litigation. The record and proceedings below contain

no suggestion that the district court is empowered to

coerce any district to participate in whatever voluntary

interdistrict transfer proposal it promulgates for consid-

eration by any districts that care to consider it. To the

contrary, the Eighth Circuit quite explicitly told the dis-

trict court, in default by the State of its five-year-old

obligation to do so, to draw up a voluntary interdistrict

transfer proposal “so that school districts which desire to

do so may participate in the 1990-91 school year.” Jenkins,

904 F.2d at 419 (emphasis added). The Eighth Circuit,

thus, simply ordered the district court to take the place of

the State in formulating a voluntary interdistrict transfer

proposal and offering it to such districts in the Kansas

City area as might be interested.

In sum, Naylor involves a prior event (the SSDs’

refusal in 1988 to admit to their schools a number of black

applicants), and the court of appeals’ order that the dis-

trict court determine whether unconstitutional racial

animus interceded in that 1988 event. By contrast, Jenkins

(which is not even before this Court), involves a future

event (the promulgation for 1990 and beyond of a volun-

tary interdistrict transfer proposal), and the court of

appeals’ order that the district court present that 1990 -

and beyond — proposal to the SSDs, and any other inter-

ested districts, for such action or inaction as those dis-

tricts “desire to [undertake].” By eliding those two quite

separate events into a single, hypothetical event of peti-

tioners’ imagining, question two presents the court with a

request for an advisory opinion of just the sort Article

Ill’s “case or controversy” requirement forbids this Court

to make.

Il. The Eighth Circuit correctly remanded the Naylor

litigation to the district court for a trial on the

merits.

The only issue decided against petitioners by the

Eighth Circuit was the propriety of summary judgment -

ie., whether the case presented a triable set of factual

allegations and proffers on the questions of the SSDs’

motivation in refusing to admit the respondent black

10

children to the SSDs’ schools. Unlike the district court,

the court of appeals resolved that question based on this

Court’s summary judgment standard and, on that basis,

remanded the case to the district court for resolution on

its merits.

A. Unlike the district court, the Eighth Circuit cor-

rectly followed this Court’s summary judgment

analysis.

According to Rule 56(c) of the Federal Rules of Civil

Procedure, summary judgment may be granted only

when “the pleadings, depositions, answers to interroga-

tories, and admissions on file, together with the affi-

davits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

a judgment as a matter of law.” In 1986, this court clari-

fied the standards to be applied to motions for summary

jadgment under Rule 56. The Court held that the role of

the district court is not “to weigh the evidence and deter-

mine the truth of the matter, but to determine whether

there is a genuine issue for trial.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). “The evidence of the

nonmovant is to be believed, and all justifiable inferences

are to be drawn in his favor,” id. at 255; and summary

judgment may not be granted “if the evidence is such that

a reasonable jury could return a verdict for the nonmov-

ing party.” Id. at 248.

The Court further held in Anderson that, in deter-

mining whether a reasonable jury could find for the

nonmoving party, the district court may not apply a

11

substantive legal standard for assessing whether the non-

moving party’s proffered evidence makes out its case that

is different from or higher than the standard the jury

could apply were the evidence presented to a jury. Ander-

son, 477 U.S. at 255. Thus, “whether a given factual dis-

pute requires submission to a jury must be guided by the

substantive evidentiary standards that apply to the case.”

Id.

The “substantive evidentiary standards” that apply

to respondents’ intentional discrimination claims in this

case are those set out in \/illage of Arlington Heights v.

Metropolitan Housing Development Corp., 429 U.S. 252, 266

(1977) and Washington v. Davis, 426 U.S. 229, 242 (1976). In

both those cases, the Court made clear that circumstantial

evidence of intentional discrimination can suffice.

Arlington Heights at 266; Davis at 242. By refusing to credit

circumstantial evidence of intentional discrimination, the

district court was not “guided by substantive evidentiary

standards that apply to the case.”” Because the Eighth

Circuit, by contrast, did adhere to the court’s summary

judgment analysis in Anderson and did adhere to its

intentional discrimination analysis in Arlington Heights

and Davis, the Eight Circuit’s finding that “a material

factual dispute remains”® in the Naylor litigation com-

pelled its decisiow to remand for a trial on the merits and

certainly presents no basis for review at this stage by this

Court.

7 Anderson, at 266. The Eighth Circuit properly reversed

the district court’s grant of summary judgment on that basis.

Jenkins v. Missouri, 904 F.2d at 420.

8 Jenkins v. Missouri, 904 F.2d at 420.

12

B. The Naylor class presented genuine issues of

material fact that precluded summary judgment.

Only a cursory examination of one or two of the

Naylor class’ allegations and proffers against each of the

three SSDs is necessary to demonstrate genuine issues cf

material fact.?

1. The evidence of the North Kansas City District's

Intentional Discrimination. When the North Kansas City

School District (“NKCSD”) rejected members of the

Naylor class, it had a written policy on nonresident

admissions that had existed since 1978. Rather than

lying its policy to the requests by the black KCMSD

student respondents for admission, however, NKCSD cre-

ated a special and far more onerous — indeed, prohibitive

— policy for those students and those students alone.?°

Even by itself, and apart from plaintiff’s other proffered

evidence of NKCSD’s discriminatory intent,!1 NKCSD’s

9 In his concurring opinion below, Judge John R. Gibson

systematically examined much of the evidence before the dis-

trict court and agreed that it presented genuine issues of

material fact. Jenkins, 904 F.2d at 422-424.

10 NKCSD’s special policy required: complete NKCSD

authority to choose which students would be accepted; com-

plete NKCSD authority to assign students to specific schools

and grades; that parents of transfer students “pledge” to sup-

port their child’s education and be immediately available for

consultation; surrender of the right to direct “any complaint”

or “inquiry” into the district's liability for violating the law to

any authority other than NKCSD; payment by the applicants to

NKCSD for its legal fees and expenses “attributable to the

previous Jenkins litigation” and to the district’s “investigation

of voluntary programs;” and participation of school districts in

the neighboring State of Kansas in a voluntary interdistrict

transfer plan. J.A. at 1132-34.

11 See, e.g., Jenkins, 904 F.2d at 424 (Gibson, J., concurring).

13

adoption of a new and prohibitive policy specifically

tailored to the respondent black children’? raised an

inference of intentional discrimination sufficient to war-

rant adjudication of respondents’ allegations. See

Arlington Heights, 429 U.S. at 267 (actions differently

applied by race and contrary to existing policy can raise

inference of intent); Griffin v. County School Bd., 377 U.S.

218, 230-232 (1964) (timing and procedure of changes in

policies can suggest intent to withhold benefits from

minorities).

2. The evidence of the Indep ndence School Dis-

trict’s intentional discrimination. Like NKCSD, the Inde-

pendence School District (“ISD”) created a new

nonresident student policy in response to admission

requests from the black members of the Naylor class. In

ISD’s case, however, the preclusive demands made on the

Naylor class as a condition for admission were even

greater than the NKCSD’s demands.!?

Additionally, the ISD long had exercised the discre-

tion to admit out of district students (nearly all white),

whose admission was not authorized by the school

board’s written nonresident-student policy, when the

12 In addition to the specific references to the prior Jenkins

litigation, the plan explicitly limited its new policy to minor-

ities. J.A. at 1135.

13 ISD required as a prerequisite for admitting the respon-

dent children that they somehow make arrangements for a new

elementary school to be built and given to the district, that the

applicants pay the district for its past Jenkins litigation

expenses and that they indemnify the district against future

Jenkins expenses, and, finally, that the applicant’s attorney,

Arthur Benson, no longer represent the children with respect

to the ISD. Jenkins, 904 F.2d at 423 (Gibson, J., concurring).

14

nonresident students’ categories of special educational

needs warranted admission.’4 ISD refused, however, to

apply this same practice to members of the Naylor class,

all of whom were black. Application of facially neutral

policies in a discriminatory manner can justify an infer-

ence of intentional discrimination. See Arlington Heights,

429 U.S. at 265-66 (citing cases).

3. The evidence of the Lee’s Summit School Dis-

trict’s racial discrimination. Lee’s Summit School District

(“LSSD”) facially violated its nonresident policy when it

refused members of the Naylor class. At the time of the

applications, LSSD’s written policy stated: “Nonresident

students may be permitted to attend the district’s schools

upon payment of tuition as established by the Board.”

J.A. at 1088.

Rather than applying its written policy, LSSD offered

a succession of justifications to refuse the Naylor appli-

cants. First, the district refused because the State had

taken the position that it would not pay the tuition of the

Naylor students. After the applicants assured that they

would pay “whatever reasonable tuition requirements

Lee’s Summit may determine,” J.A. at 1154, the district

modified its answer, stating that the black applicants

were denied admission because they had not established

“residency [or] property ownership” in the district. J.A.

at 991. Therefore, LSSD declared yet a third explanation,

namely, that “it is the district’s policy to accept nonresi-

dent students only as required by law, and in the rare

14 Almost all of whom were white students. J.A. at 1387.

15

situation where a student’s family moves out of the dis-

trict [but the] student [wants] to continue in Lee’s Sum-

mit schools.” J.A. at 1462. Even apart from LSSD’s

departure from its longstanding written policy when

black children asked to take advantage of the policy,

LSSD’s shifting explanations alone justify an inference of

intentional discrimination and therefore preclude sum-

mary judgment. See Arlington Heights, 429 U.S. at 264-65.

With respect to each district, therefore, the Naylor

plaintiffs presented more than ample evidence from

which a reasonable factfinder could infer intentional dis-

e crimination. Because this Court’s summary judgment

standards require reviewing courts to believe all of the

nonmovant’s evidence and make all justifiable inferences

in the nonmovant’s favor, summary judgment was imper-

missible.

C. Neither Wygant nor Goldsboro are in conflict

with the Judgment of the Eighth Circuit.

The petitioners seek artificially to create a conflict

between the judgment below and Wygant v. Jackson Bd. of

Educ., 476 U.S. 267 (1986). In Wygant this Court disap-

proved of a remedial order that required giving employ-

ment preferences to minority teachers. Here the court of

appeals simply remanded the complaint to the district

court to hear the factual issues and to determine if there

is a violation of the Constitution. If such a violation is

found then and only then will the question of appropriate

remedies be presented. Similarly, no conflict exists with

Goldsboro City Bd. of Educ. v. Wayne County Bd. of Educ.,

745 F.2d 324 (4th Cir. 1984). There the Fourth Circuit held

prem 2

8

16

that a school district had no duty to remedy a racial

imbalance in a neighboring district. That issue is not

presented here. The court of appeals has only remanded

this case for a determination of whether these districts

violated the Fourteenth Amendment by intentionally

denying respondents admission because of their race.

Neither Wygant nor Goldsboro speak to this issue. Peti-

tioners are desperately seeking solace where none is to be

found.

Summary

Importantly, no court has ordered any of the peti-

tioners to participate in a voluntary interdistrict transfer

plan. Nor has any court made findings of fact adverse to

petitioners. Rather, the court of appeals has simply

directed the district court to inquire into the motivation

that has led the SSDs to follow long held policies and

admit white interdistrict transfer students but to abandon

those same policies and refuse to admit black transfer

students. Fairly read, therefore, the petitioners ask this

Court to advise them of the proper outcome on a hypo-

thetical situation in which a hypothetical court renders a

hypothetical order - premised on something other than

the SSDs’ motivations — of a sort that no party or court in

this case has suggested could permissibly be rendered.

Further, petitioners seek this advice before trial on a com-

plaint raising allegations that depart from the petitioners’

hypothesized contentions in all relevant respects.

Whether such issues as petitioners raise will ever be ripe

cannot be known, but they surely are not ripe now.

a.

wv

17

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

ArTHUR A. BENSON II

1000 Walnut Street

Suite 1125

Kansas City, Missouri 64106

(816) 842-7603

Attorney for Respondents,

Naylor, et al.